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Jagdish Puri & Anr vs Amba Devi & Ors on 9 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Misc. Appeal No. 1128 / 2015

1. Jagdish Puri S/o Late Shri Shanker Puri, aged 49 years, R/o
Mandphia Charnoka, Tehsil and District Bhilwara.

2. Smt. Jhamku Devi W/o Jagdish Puri, aged 39 years, R/o
Mandphia Charnoka, Tehsil and District Bhilwara.

—-Appellants
Versus

1. Amba Devi D/o Shri Ram Giri W/o Shri Ramesh Puri
Goswami, R/o Mandphia Charnoka, at present F-257,
Bapunagar, Bhilwara.

2. Narendra Giri S/o Late Shri Narayan Giri R/o Kanera, at
present F-257, Bapunagar, Bhilwara.

3. General Public.

—-Respondents
__
For Appellant(s) : Mr. B.S. Charan
For Respondent(s) : Mr. Pankaj Gupta
__
HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE VINIT KUMAR MATHUR
Order
09/04/2018

1. Heard learned counsel for the parties.

2. The appellants applied to be appointed as a guardian of a

person of their minor grand-daughter who was aged 6 years when

the petition was filed.

3. Cause pleaded in the petition was that after the death of

their son, residing with them for some time, their daughter-in-law

got remarried and from the second marriage was blessed with a

son. It was pleaded their daughter-in-law and her second husband

were both working and thus as per the appellants the two had no
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[CMA-1128/2015]

time to look after the grand daughter of the appellants. It was

also pleaded that the second husband of the daughter-in-law

maltreated the appellants grand-daughter and on one occasion

due to beatings her ribs got fracture.

4. The respondents chose not to defend the proceedings by

remaining ex-parte.

5. The learned Judge, family Court dismissed the petition on an

erroneous understanding of the law. As per the learned Judge, in

view of Section 19 (b) of the Guardians and Wards Act, 1890 relief

could not be granted.

6. The learned Judge overlooked the fact that Section 19

pertains to a person being appointed as guardian of the property

of a minor and lays emphasis that if a father or mother of a minor

is living, no other person should be appointed as a guardian

unless it is pointed out that the father or the mother is unfit to be

guardian of the person of the minor.

7. The grand-daughter of the appellants would be aged

between 11 years and 12 years as on today. The appellants are

residing in a village about 40 km from the town of Bhilwara. The

natural mother and the foster father of the girl reside in the city of

Bhilwara. Further, except for statement on oath by the appellants

they gave no material to show that the foster father of their

grand-daughter subjected her to beatings and as a result thereof

on one occasion she received fracture of the ribs.

8. That the natural mother of the grand-daughter of the

appellants is a working woman and her second husband is also

working is not ground to hold that two cannot discharge the duties
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[CMA-1128/2015]

towards the minor grand-daughter of the appellants.

9. Unfortunately for the appellants their counsel, neither at the

trial nor in the instant appeal, made any request for visitation

rights to the appellants to meet their grand-daughter.

Unfortunately, the physical company between the appellants and

their grand-daughter was parted when the grand-daughter was

aged 2 years. She would hardly remember the appellants today.

10. It is in the interest of the grand-daughter that she grown up

knowing her grand-parents.

11. To create the bond between the appellants and their grand-

daughter we have two options. Either to call the minor to the

Court in Jodhpur so that after the grand-daughter familiarizes

herself with the appellants, directions can be issued to the

daughter-in-law of the appellants to permit the overnight

visitation right. The second option could be to restore the petition

with the direction to the Judge, Family Court, Bhilwara to do

needful further.

12. Since the appellants reside in a village 40 km from Bhilwara

city and the respondents reside in Bhilwara city, it would be better

that the Judge, Family Court would do the needful.

13. Maintaining the impugned order dated 16.03.2015, we

restore Civil Misc. Case No.152/2013 filed by the appellants which

has been decided by the learned Judge, Family Court vide

impugned order dated 16.03.2015. At the remained stage the

learned Judge, Family Court would not proceed to decide whether

appellants need to be appointed as a guardian of a person of their

grand-daughter. The learned Judge would facilitate meeting with
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[CMA-1128/2015]

the appellants and their grand-daughter, require the respondents

to produce the appellants’ grand-daughter in the Court. Once the

learned Judge, Family Court finds that the child is comfortable

with her grand-parents interim meeting rights with the grand-

daughter at appellants’ residence for short duration could be

granted. Needless to state wishes of the child would be

ascertained but not at the first meeting, for the reason appellants

would be strangers to the child. The Judge, Family Court would

first facilitate at least 4-5 meetings between the appellants and

their grand-daughter before ascertaining the wishes of the minor

girl.

14. Directing as above, the appeal is disposed of.

(VINIT KUMAR MATHUR)J. (PRADEEP NANDRAJOG)CJ.

Ramesh/29

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